Reilly v. US, Civ. A. No. 85-0748 P.

Citation682 F. Supp. 150
Decision Date03 March 1988
Docket NumberCiv. A. No. 85-0748 P.
PartiesDonna REILLY, Peter Reilly and Heather Reilly, p.p.a., Donna Reilly and Peter Reilly, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Rhode Island

Mark S. Mandell, Providence, R.I., for plaintiffs.

Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for defendant.


PETTINE, Senior District Judge.

Defendant in the present action, the United States of America, has moved for a new trial pursuant to F.R.Civ.P. 52(b) and 59. Of the various grounds upon which defendant attempts to found its motion, only one requires comment. The other fourteen grounds defendant propounds are nothing more than a reiteration of that which was previously proffered to this court and ruled upon at trial or in its Opinion and Order of July 28, 1987, 665 F.Supp. 976. Unlike defendant, this court finds no value in the unnecessary repetition of previous rulings. Newly proffered, however, is defendant's objection to the appointment by this court of a technical advisor. Defendant claims that this court acted both improperly and without authority in making this appointment. Although defendant's objection is wholly without merit, confusing the appointment of a technical advisor with an expert witness under F.R.Evid. 706, this court believes that it is worthy of comment because of the rarity with which technical advisors are used by the United States judiciary.

The Technical Advisor

"Proof of economic, scientific and technical facts," as one scholar noted at the 1958 Seminar on Protracted Cases for United States Judges, "has been studied ... so much that the significance of such proof and the urgency of developing ways of shortcutting it need no further emphasis." McGlothlin, "Some Practical Problems in Proof of Economic, Scientific and Technical Facts, Proceedings of the Seminar on Protracted Cases for United States Judges, 23 F.R.D. 319, 467 (1958). Recognizing the urgency of this problem and the concommitant need to educate members of the federal bench in new methods and procedures, the Judicial Conference of the United States adopted and published the Handbook of Recommended Procedures for the Trial of Protracted Cases. Therein, the Judicial Conference made formal recommendations with commentary. As "Recommendation 2" the Handbook avers that "in an increasingly complex society, the judiciary and the bar should be ever alert to the possibilities of new techniques and devices which may improve the accuracy of, and expedite decisions involving scientific, technical or economic issues." Handbook of Recommended Procedures for the Trial of Protracted cases, 25 F.R.D. 351, 416 (1960). Following this recommendation the Handbook comments that

no one has yet devised a generally acceptable method of proof in respect to these issues of exact science. The cases and the issues differ vastly. Judges, so far as we can learn, differ vastly in their preference for procedure. As of the time of this Handbook, five methods of resolving by evidence issues of facts in the exact sciences have been suggested or tried with greater or less success. They are here described.

Id. at 417. The procedure employed in the present case, the appointment of a neutral, technical advisor, is one of the five methods which the Handbook describes.

Briefly, the method contemplates the appointment of an expert to the judge's staff. The expert becomes, in effect, a specialized law clerk. He sits throughout the trial or otherwise familiarizes himself with the relevant testimony and evidence and then advises the court in camera. He does not testify or appear as a witness. Id. at 420. The role of the technical advisor may be viewed as fulfilling five separate functions. First, the technical advisor translates and interprets for the court the technical language used in the case. Second, he offers an exposition and delineation of the technical disagreement between the parties. Third, he relates this disagreement to the broader principles of the science or technical art involved. Fourth, he presents his own opinion on the technical facts and related matters at issue. Finally, he may conduct pertinent experiments, either on his own or in cooperation with others. See generally, Whinery, The Role of the Court Expert in Patent Litigation, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, Study No. 8, 85th Cong., 1st Sess., 22, 41 (1958) hereinafter Subcommittee Study No. 8.


In the present case, this court found itself confronted at trial with issues of profound economic complexity. Required to determine the damages for loss of earning capacity of an infant who had been negligently injured at birth, this court had to calculate a liquidated amount of damages for a little girl who would never be able to work, to see the world or walk about it, to talk to others or to feed and otherwise take care of herself in any way. Untrained in the nature and nuances of economic functions, unable to scrutinize the relevance of alleged independent variables or objections thereto, uncertain of the grounds and bounds of valid economic inference, this court recognized its need of a guide to lead it through the maze of economic theory and fact. To this end, the present court decided to adopt the somewhat unusual but not unprecedented procedure of procuring neutral technical advice.

In its search for an economist to fulfill this role, this court naturally looked to the faculties of the universities surrounding Providence, Rhode Island, the seat of this District's federal courts. It is a well-accepted commonplace that university faculties are a rich source of neutral specialists. Not only are university professors most likely to be dissociated from any feature of the case, but they bring to the litigation a broad knowledge of the science or art involved, acquired through years of research and study. Moreover, in a large and protracted case, it is not unusual to discover that many of the leading experts in a particular scientific field who are not members of a university have been engaged as consultants to one of the parties to the litigation. See generally, Subcommittee Study No. 8, at 38; Judicial Conference of the United States, Interim Report of the Committee on Compensation of Expert Witnesses in Civil Litigation, committee memorandum, Exh. D, 1 (September, 1952) (memorandum of the late Hon. William C. Coleman) hereinafter Interim Report.

After seeking approval for the appointment of a technical advisor from the Administrative Office of the United States Courts in Washington, D.C., and from Chief Judge Campbell of the United States Court of Appeals for the First Circuit, this court telephoned Dr. Feldman of Brown University. The conversation was brief. After explaining that the court desired to procure the services of a technical advisor and that such an advisor would be a member of the judicial staff, the court noted only that the case concerned an infant injured at birth and that the economic problem surrounded the determination of damages for loss of earning capacity. At this point in the conversation, Dr. Feldman asked if the name of the injured infant was Heather Reilly, informing the court that Mark Mandell, attorney for the plaintiff, had spoken to him about her case. The court then informed Dr. Feldman that the conversation could not proceed and, after receiving from him the names of a couple of other professors, ended the call.

This court then contacted another economist who stated that he would rather not become involved in matters surrounding a litigation. At this point, the court telephoned Dr. Arthur Meade of the University of Rhode Island. After having explained to Dr. Meade the nature of the position and outlined the general contours of the economic problem involved, Dr. Meade accepted the appointment conditioned on approval from the Administrative Office in Washington, D.C. The procedure for securing proper authorization to appoint Dr. Meade as a technical advisor was then initiated.

Defendant now alleges that this court had no authority to appoint a technical advisor. This court is compelled to express its amazement at defense counsel's claim. The authority of a court to appoint a technical advisor has a history that is both long and clear. Whether one looks to statutory enactments in this country, or to its decisional law; whether one looks only within the jurisdictional boarders of our own land, or to the ancestral home of the common law; whether one looks to the provinces of law, equity or admirality: the answer is clear: a court has the power to appoint a technical advisor.

Statutory Authority

This court begins its recitation of the statutory enactments that empower this court to appoint a technical advisor or consultant with the Administrative Expenses Act of 1949, ch. 744, 60 Stat. 806 (1949). Sensitive to the growing need of expert consultation in government, the Congress in section 15 of this Act granted the various departments and agencies that constitute the executive branch of our government the power, "when authorized in an appropriation or other Act," to "procure the temporary (not in excess of one year) or intermittent services of experts or consultants or organizations thereof...." Administrative Expenses Act, ch. 744, sec. 15, 60 Stat. 810 (1949) (originally codified as 5 U.S.C. sec. 55a) (recodified with amendment as 5 U.S.C. sec. 3109 (1966)). A decade later, Congress recognized that the judiciary as well as the executive branch required occasional recourse to expert consultation. Correcting their original oversight, Congress enacted legislation that granted to the judiciary the same power to hire experts and consultants that the executive branch enjoyed. In section 5(b) of Public Law 86-370, Congress enacted that "the Director of the Administrative Office of...

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4 cases
  • Reilly v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 16, 1988
    ...(D.R.I.1987) (Reilly I ). The defendant moved to set aside the judgment; the district court denied the motion. Reilly v. United States, 682 F.Supp. 150 (D.R.I.1988) (Reilly II ). The United States Appellant recites an alphabet of error: it claims, among other things, that the court below er......
  • Uniloc Usa, Inc. v. Microsoft Corp.
    • United States
    • U.S. District Court — District of Rhode Island
    • June 14, 2007
    ...courts may appoint technical advisors when "faced with problems of unusual difficulty, sophistication, and complexity"), aff'g 682 F.Supp. 150, 152-53 (D.R.I.1988) (appointing a technical advisor in a case involving complex economic theories and demonstrably high stakes). There can be littl......
  • Conservation Law Foundation v. Evans, Civil Action No. 01-1134(GK).
    • United States
    • U.S. District Court — District of Columbia
    • April 9, 2002
    ...Act, Pub.L. No. 95-539, § 5, 28 U.S.C. § 602(c), afford the judiciary statutory authority to employ an expert. In Reilly v. U.S., 682 F.Supp. 150 (D.R.I.1988), the district court conducted an exhaustive examination of the legal principles underlying a court's inherent authority to appoint a......
  • Conservation Law Foundation v. Evans, Civil Action No. 00-1134 (GK) (D. D.C. 4/9/2002), Civil Action No. 00-1134 (GK).
    • United States
    • U.S. District Court — District of Columbia
    • April 9, 2002
    ...Act, Pub.L. No. 95-539, § 5, 28 U.S.C. § 602(c), afford the judiciary statutory authority to employ an expert. In Reilly v. U.S., 682 F. Supp. 150 (D.R.I. 1988), the district court conducted an exhaustive examination of the legal principles underlying a court's inherent authority to appoint......

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